Judge from Court of Criminal Appeals Points Out a Discrepancy in Various Statutes in the TN Criminal Code

JOSEPH M. TIPTON

In a concurring opinion to the Court of Criminal Appeals decision in  State v. Deandre Blake, Judge Joseph Tipton agreed with the Court's opinion, but elected to point out a possible discrepancy in various statutes in the criminal code. We think that these are important issues and ones likely to be revisited by the Court.

This case involved convictions by Blake for two counts of first degree murder committed in the perpetration of child abuse and child neglect. Blake argued on appeal that the evidence was not sufficient to uphold the convictions. The Court held that the evidence was sufficient to uphold both convictions.

Justice Tipton agreed but questioned the language of the provisions of the TN Criminal Code including: first degree murder, aggravated child abuse and aggravated child neglect. He emphasized the history of the Tennessee Legislature with regards to amendments to the felony murder statute. Specifically, in 1998, the legislature added aggravated child neglect to the list of predicate felonies in the felony murder statute. During that same year, the legislature amended the child abuse statute to include as a felony, "Aggravated Child Neglect." The intent of the legislature at this point was to "distinguish criminal conduct that caused injury to a child from criminal conduct that adversely affected a child's health and welfare by creating two different offenses, child abuse and child neglect."

However, in 2005, Justice Tipton explains, the legislature enacted a statute that penalized 1) treating a child in a way as to inflict injury or 2) abusing or neglecting a child so as to adversely affect the child's health and welfare." According to Tipton,

"to the present date, the felony murder statute retains the predicate felonies of 'aggravated child abuse' and 'aggravated child neglect' even though the offense of 'aggravated child neglect' contains the alternative that it may be committed through 'abuse."

Therefore, while the legislature seemed to include child abuse as a type of aggravated child neglect, the felony murder statute continues to separate both offenses.

Justice Tipton explained that while this is a blatant discrepancy, the standard of review requires the Court to presume that the legislature did not intend an absurd result and to avoid such result by reasonable construction, to the extent possible. In judging the evidence in the light most favorable to the state, the evidence was sufficient to prove that the Defendant abused the victim and that his beatings had an adverse effect on her health and welfare, and that she clearly suffered serious bodily injury. Therefore, as the statute for felony murder requires, the victim was killed in the perpetration of these acts.

It will be interesting to see when or if the legislature responds to this discrepancy.  Here it may not have made a difference in the end result, but clearly it could be problematic in future cases.